Thursday, 15 October 2015

Prisoner voting: now a matter of EU law

‘Members of
the European Parliament shall be elected by direct universal suffrage in a free
and secret ballot.’

In
its brief
and rather low key judgment in Delvigne
(Case C-650/13; ECLI:EU:C:2015:648), which was handed down on 6 October 2015, the
Grand Chamber of the Court of Justice has put flesh on the bones of this
provision. It concluded that national measures taken to determine who is
entitled to vote in European Parliament elections fall within the scope of EU
law as they must be considered to be implementing EU law within the meaning of
Article 51(1) of the Charter of Fundamental Rights. Consequently, Article 39(2)
is applicable in such a situation, as are other Charter Rights. The Court’s
judgment follows the recommendations of Advocate General Villalon’s Opinion
(ECLI:EU:C:2015:363), albeit with much more laconic reasoning and without
reference to the ECHR or Strasbourg case law.

The
CJEU reviewed certain French rules depriving the applicant of his civic rights,
including the right to vote and to stand for election. This sanction was
imposed, by operation of law, consequent upon the applicant’s conviction for a
serious crime and his receipt of a custodial sentence. However, the Court
concluded that measures depriving a person who has been convicted of a serious
crime of the right to vote on an indefinite basis were not precluded by Article
39(2) CFR. The Court did not refer to the European Convention on Human Rights
and Fundamental Freedoms, or the well-known prisoner voting case law of the
European Court of Human Rights. But it did discuss the need for any limitations
on the right to vote to be proportionate, in the sense of pursuing a legitimate
aim of general interest and of taking into account the nature and gravity of
the criminal offence committed and the duration of the penalty imposed. The
Court further held that there was no infringement of Article 49 CFR regarding
the non-retroactivity of criminal sanctions. This part of the case will not be
discussed further in this blog.

Prior
to Delvigne, the only significant excursion
by the Court of Justice into the field of European Parliament voting rights was
in 2006. In Spain v UK (Gibraltar), the Court
rejected an argument led by Spain that the scope of the franchise for European
Parliament elections was determined by EU law. This precluded a challenge
brought by Spain against the UK’s decision to include Commonwealth citizens
within the Gibraltar franchise, when extending the scope of European Parliament
elections to that territory pursuant to the Court of Human Rights judgment in Matthews. The same point about Articles 1(3) and 8 of the 1976
Act on Direct Elections not expressly or precisely defining who are entitled to
vote in EP elections was repeated inEman and Sevinger (Aruba), decided
on the same day. Moreover, the Court in Eman
and Sevinger expressly stated that the provisions on citizenship in what
was then Part Two of the EC Treaty do not confer an ‘unconditional right to
vote and to stand as a candidate in elections to the European Parliament’ on
citizens of the Union (para. 52). The Court highlighted that the citizenship
provisions in Part Two were aimed at guaranteeing access to the vote for those
EU citizens resident outside the state of which they were nationals. The Court
also went on to state that nothing precluded Member States using the criterion
of residence in order to determine who had the right to vote, relying in that
respect on ECHR case law. However, the Court did conclude that an equal
treatment issue arose in the circumstances of the case, because of the
difference in approach under Netherlands law for two groups of Netherlands nationals,
who were not resident in the metropolitan Netherlands. Those resident in Aruba
could not vote, and yet those in third countries could vote. This difference in
treatment (under the general equal treatment principle) needed to be justified.

The
judgment in Delvigne draws on the
groundwork laid down in Eman and Sevinger,
in its application of the proportionality principle to scrutinise national
arrangements on prisoner voting. The applicant was convicted of a serious crime
in 1988 and given a custodial sentence of 12 years. By operation of the law
then applicable, that sentence also entailed the loss of his civic rights, as
he had been convicted of a serious offence. Subsequently, new Criminal Code
provisions abolished the ancillary penalty of loss of civic rights by operation
of law, and laid down that a total or partial deprivation of civic rights must
be the subject of a court ruling, and may not exceed ten years in the case of
conviction for a serious offence. However, Delvigne himself was not affected by
the provisions of the new Criminal Code, as his deprivation of rights resulted
from a criminal conviction that became final before the new Criminal Code
entered into force. In the French courts, he contested a decision to remove his
name from the electoral register in the district in which he was residing, an
act which prevented him voting in the 2014 European Parliament elections,
arguing this was contrary to EU law. To assist its deliberations, the French
court referred a series of questions to the Court of Justice.

The
French government (backed by interveners Spain and the UK) contested the
jurisdiction of the Court, arguing that there was no connection to EU law given
that it lies within the competence of Member States to determine who can vote
in European Parliament elections. The Court noted that EU law is applicable,
under Article 51 CFR, only where Member States are implementing EU law. Citing Gibraltar and Eman and Sevinger, the Court acknowledged (para. 31) that the Act
on Direct Elections does not expressly and precisely determine who are to be
entitled to vote in EP elections. However, in exercising that competence,
Member States are bound ‘by
the obligation set out in Article 1(3) of the 1976 Act, read in conjunction
with Article 14(3) TEU, to ensure that the election of Members of the European
Parliament is by direct universal suffrage and free and secret’, a point which
was supported by the European Commission, the European Parliament and the
German Government in their observations. This creates the connection to EU law.

The words ‘direct universal
suffrage’ have been present in EU primary law for more than 50 years, as they
were included in the original Treaty of Rome, admittedly as an aspiration for
direct elections to be held to the European Parliament. For nearly 40 years
(since the 1976 Act on Direct Elections), the aspiration has been given
concrete form, through a procedure to ensure that the citizens of the Member
States elect the members of the European Parliament. Since the Matthews case before the ECtHR, it has
also been clear that the EP is a legislature vis-à-vis those citizens, and thus that the elections are subject
to the overarching norm of universal suffrage set out Article 3 of Protocol 1
ECHR. This is reinforced by Article 14(3) TEU which adopts the same words as
Article 39(2) CFR. Why has it taken so long to establish that in principle Member
States’ franchise rules in respect of the holding of European Parliament
elections are subject to universal suffrage norms within the framework of EU law (as opposed to by reference to the
ECHR alone, as per Matthews)? Perhaps
the arrival of the Charter of Rights has made a difference. And yet the texts
are precisely the same. As the Court observed (para. 44):

As regards
Article 39(2) of the Charter, it is apparent from the considerations in
paragraph 41 of the present judgment that this constitutes the expression in
the Charter of the right of Union citizens to vote in elections to the European
Parliament in accordance with Article 14(3) TEU and Article 1(3) of the 1976
Act.

Article 39(2) appears, therefore, to
add no additional substantive heft to the principles of universal suffrage
compared to the pre-Charter situation. However, the explanations relating to
the Charter do make it clear that Article 39(2) takes over the basic principles
of the electoral system in a democratic state. This is presumably a reference
to ECHR case law on Article 3 of Protocol 1. And it is perhaps the clear
articulation of the scope of EU law as relating to situations where Member
States are implementing EU law contained
in Article 51 CFR that prompts the CJEU into a clearer holding that franchise
restrictions are subject to the basic principles of EU law than one finds in Eman and Sevinger. The result is the
same, but the route taken is much more elegant. So in that respect the Charter
does help the Court of Justice to put itself in the position to cast its eye
over the French prisoner voting rules.

The resolution of the substantive
issues in the case by the CJEU is very brief. As any ban on prisoners voting is
a restriction on a fundamental right protected by the Charter (the right to
vote in EP elections), it needs to be assessed as a limitation under Article
52(1) CFR. The CJEU quotes the conditions under which limitations on the
exercise of rights are permissible: they must be provided for by law, they must
respect the essence of those rights and freedoms and, subject to the principle
of proportionality, they must be necessary and genuinely meet objectives of
general interest recognized by the European Union or the need to protect the
rights and freedoms of others (para. 46).

It was clear that the ban is
provided for by French law (and indeed in a later part of the judgment not
discussed here, the Court concluded that the approach taken by the French
legislature to maintaining the voting ban in respect of those whose sentence
had already become final before the entry into force of the new law was not
contrary to Article 49 CFR). Second, excluding certain persons under certain
conditions, on account of their conduct, does not affect the essence of the right (para. 48).
Finally, and perhaps crucially for those who were waiting for this case from
the side of the UK, with its fraught debate on prisoner voting, the Court
stated that ‘a limitation such as that at issue in the main proceedings is proportionate
in so far as it takes into account the nature and gravity of the criminal
offence committed and the duration of the penalty’ (para. 49). And that was
pretty much all the Court had to say on the matter. It chose to decide the
proportionality issue itself, rather than referring this back to the national
court. The Court noted the French observations that Delvigne was made subject
to a deprivation of civic rights as a result of being sentenced to a term of 12
years’ imprisonment for a serious crime, and that he also had the possibility
of applying for and obtaining a court order lifting the sanction.

As a case on the Charter of Rights, Delvigne does not break new ground
although it does provide helpful clarifications, especially when one looks at the
Advocate General’s Opinion. As has been argued previously, it follows quite naturally from Eman and Sevinger and from text of
Article 39(2) CFR that the Court would conclude that domestic limitations upon
the European Parliament elections franchise would fall within the scope of EU
law, and that as such they would be subject to a proportionality test. The
value of the case is that it makes the point explicit, whereas the challenge
after Eman and Sevinger was to figure
out from the Court’s judgment what exactly was the link with EU law that gave
the Court jurisdiction to examine the character of the Dutch state’s policies
on external voting in EP elections and to find them to be, in effect, arbitrary
in character (by applying the general Aristotelian principle of equal
treatment). Indeed, it would have been better if the Court in Eman and Sevinger had followed the Advocate General at that time (see paras. 69-71 of
the Opinion), and concluded that there is (has always been since direct
elections?) a freestanding (but obviously not unlimited) ‘right to vote’ in EP
elections on the part of EU citizens. Part of the problem has been that this
right to vote (as an expression of universal suffrage in a democratic context)
has often been confused with the right on the part of non-national EU citizens
in the Member State of residence (which is an expression of the importance that
EU law attaches to the integration of migrant EU citizens in their host state,
so that they do not in fact lose rights as a result of mobility). In Delvigne, the Court carefully separated
the two and made it clear that Article 39(1) CFR, which corresponds to Article
20(2)(b) TFEU, does not apply in a case such as this. Of course, that does not
resolve precisely what mix of Articles 39(1) and 39(2), plus associated TFEU
provisions, might apply to a case involving a non-national EU citizen prisoner
subject to a voting ban in respect of EP elections in the host state, as arose
in the UK in the case of Teshome
v The Lord President of the Council ([2014]
EWHC 1468).

The major difficulty with the
judgment in Delvigne is that unlike
the Advocate General, the Court gives no clue as to whether it has read the
case law of the European Court of Human Rights on Article 3 of Protocol 1, and
thus how it feels that the tests and standards which it applies based on
Article 52 stacks up against the approach taken to contracting state discretion
on prisoner voting in cases such as Hirst v United Kingdom (No
2) (2005) 42 EHRR 849 and
Scoppola v Italy
(No 3) (2012) 56 EHRR 663. The AG’s conclusion was the legislation such
as that at issue in Delvigne was not
precluded by Article 39(2) CFR ‘provided
always that it does not prescribe general, indefinite and automatic deprivation
of the right to vote, without a sufficiently accessible possibility of review,
the latter particularly being a matter which it is for the national court to
establish.’ This sticks close to the ECHR rubric.

It is beyond the scope of this blog
to discuss in detail the fraught political process, the interactions between
domestic case law and Strasbourg case law, and the tentative steps taken within
the UK Parliament in the form of the Draft Voting Eligibility Bill to find a compromise between
Strasbourg and what appears to be the mainstream political opinion in the UK
political elite that giving the right to vote to prisoners is somehow
abhorrent. The twists and turns of this narrative are presented in full in a regularly
updated House of Common Standard Note, which provides a handy timeline. Prisoner voting has become, in the
UK, a lightning rod conducting fears about an over-interventionist Court of
Human Rights, generally underspecified worries that somehow the Human Rights
Act overprotects the human rights of those ‘less deserving’ of those rights,
and ongoing sensitivities about the proper province of the courts, including the
domestic courts, and the legislature in relation to such matters. The domestic
courts have sought to avoid conflict by making it clear that they have nothing
more to say on the issue of prisoner voting in relation to the ECHR, and that
they will not design a scheme in compliance with the ECHR even if Parliament
refuses to act. Some judges, such as Lord Sumption in the Supreme Court in Chester and McGeoch, have been critical
of the Strasbourg approach.

Indeed, for many observers and
members of the political and indeed legal elite, prisoner voting offers the
ideal opportunity to ‘stand up to Europe’, and to insist that human rights
should receive a uniquely ‘British’ interpretation. Unfortunately, it now seems
impossible to have a measured policy debate on the matter of prisoner voting in
the UK and the anomalies thrown up by the current system, although the joint
committee of the two Houses of Parliament charged with looking after the issue
of prisoner voting whilst it remains in the long grass into which it has been
kicked by successive governments has done a good job of holding a consultation
and producing a balanced report making some useful compromise suggestions about
how to bring UK law into line with what Hirst
(No. 2) and Scoppola (No. 3)
appear to require. Nothing further has happened, and the UK Government
continues to send regular letters to Strasbourg, indicating that it is waiting
for this, or that judgment, to appear – most recently Delvigne itself before doing anything further. At least one
influential legal commentator has called on the Minister of Justice Michael Gove, who
has shown himself to be somewhat more liberal-minded than many had expected in
his relatively new political role, to seize the opportunity of this case to
lead on legislation giving at least some prisoners the right to vote. The Draft
Voting Eligibility Bill may now indeed be retrieved from the long grass and
given further consideration, although no parliamentary time has been set aside.
Meanwhile, opponents of prisoner voting continue to bring forward private members bills before the Houses of Parliament to
reinforce the current position. Liberal voices arguing that Strasbourg does not go
far enough can only look on and hope for a radical change in the political
wind.

The judgment was not generally
received with hostility in the UK. Much of the newspaper commentary seemed to
assume that it would make no difference to the UK position, largely because of
a misreading of the CJEU’s acceptance that the particular ban put in place by
France was in and of itself proportionate, and because they went little further
than reading the formal part of the judgment, which reads:

Article 39(2)
[CFR]…must be interpreted as not precluding legislation of a Member State…which
excludes, by operation of law, from those entitled to vote in elections to the
European Parliament persons who, like the applicant in the main proceedings,
were convicted of a serious crime…’

This seems at first sight to be more
of an endorsement of states’ rights than it really is. In fact, the judgment
leaves many issues open for the UK courts to face as they receive the next wave
of prisoner voting rights applications, taking advantage of the new EU law
flank opened up by Delvigne, assuming
political inaction continues. Indeed, legal commentary has been much more alive to the
implications. Most obviously, it poses a direct challenge to the conclusions of
the Supreme Court in the 2013 case of Chester and McGeoch that it was not possible to make an argument grounded in EU law to
support a case brought in the domestic courts seeking a remedy in respect of
the exclusion of prisoners in UK jails excluded from EP voting rights. Lord Mance’s
lengthy consideration of the issue of EU law raised by
the applicants, in which he relied upon a contorted interpretation of Eman and Sevinger according to which it
was the EU law right given to non-national EU citizens which somehow triggered
the jurisdictional link in that case rather than freestanding protection of
universal suffrage in EP elections, led him to conclude that EU law was not
applicable. His reasoning is worth quoting in detail:

The Court of
Justice [in Eman and Sevinger]did not therefore endorse Advocate
General Tizzano’s broad approach, or import the Strasbourg jurisprudence into
the general provisions of Community and Union law referring to voting in
European Parliamentary elections. There was good reason for this. Eligibility
to vote is under the Treaties and the 1976 Act a matter for national
Parliaments, one of considerable national interest. There is no sign that the
European Commission has ever sought to involve itself in or take issue with
voting eligibility in Member States or specifically with the restrictions on
prisoner voting which apply in a number of such States. The Strasbourg
jurisprudence operates as the relevant control, albeit one that has itself
proved in some respects controversial. It would not only unnecessarily
duplicate that control at the European Community or Union level, it could also
lead to further conflict and uncertainty.

Once again, in Delvigne, the Court has declined to refer to the Strasbourg case
law, but even so the proportionality test it has applied within the field of EU
law may present a minefield for national courts, which must now open up their
domestic prisoner voting rules for scrutiny. Is it proportionate simply to make
the ban match the sentence (as opposed to a ban which can continue beyond the
sentence, but is subject to review, as is the case in France), or does
proportionality implicitly require the seriousness of the crime to be taken
into account? It is hard to imagine that these matters can be fleshed out
without reference to the Strasbourg case law, where they have been most fully
canvassed. The judgment of Lady Hale in Chester
and McGeoch provides perhaps the most overt sympathy on the part of the UK
judiciary towards the Strasbourg position that the UK’s comprehensive ban
approach is simply too lacking in nuance to satisfy the standard under Article
3 of Protocol 1 as articulated in Hirst
(No. 2) and modulated in Scoppola
(No. 3). Applying a custody threshold does not clearly articulate the aim
that disenfranchisement – not in and of itself illegitimate – seeks to promote,
and clearly custody thresholds, shifting over time, will make the question of
whether any particular person convicted of any particular crime can vote in any
given election to some degree arbitrary. The Supreme Court will undoubtedly
have to return to these issues, taking guidance from the CJEU ruling in Delvigne and applying it to the UK
context. Given the refusal to make a reference on the issue of scope in Chester and McGeoch, the Supreme Court
probably will not want to make a reference on the issue of proportionality. But
given the uncertainties that Delvigne
leaves standing, it would probably be a useful opportunity for the Court of
Justice to put a little more flesh on the bones of the proportionality test
that it has articulated. But it may be that the CJEU would be as unwilling a
recipient of such a reference as the Supreme Court would be a generator.

Moreover, now that the issue of a
freestanding right to vote in EU law as a reflection of the principle of universal
suffrage which underpins democratic elections to the European Parliament seems
settled, other limitations on the franchise may be challenged before the
national courts in the UK and elsewhere, including external voting restrictions
and restrictions on voters deemed to lack capacity by reason of disability. The
Brexit referendum franchise in the UK may perhaps also be subject to challenge
based on this argument.

Finally, once any or all of these
issues are settled, there will remain the tricky question of remedies in the
domestic legal order, which the EU law route opens up in ways that the cases in
the UK based on the Human Rights Act and Strasbourg case law do not, by virtue
of the supremacy of EU law and the relationship between the EU legal order and
the national legal order. Two options are likely to be discussed in detail,
namely the disapplication of the domestic rules and the possibility of damages
for state liability. Anticipating that he might be wrong on the issue of the
scope of EU law, Lord Mance already addressed these pre-emptively in Chester and McGeoch. He argued that even
if he were wrong about the issue of the scope of EU law, it would be simply
impossible for a national court to disapply UK law because there would be no
way of ‘reading down’ the Representation of the People Act 1983, which contains
the voting ban, without putting in place positive action including an
administrative process to allow some prisoners to exercise their right to vote,
if the ban applied in their particular case was deemed disproportionate. But
applying proportionality to such a blanket ban is indeed a tricky issue. Consistent with his approach to
interpreting EU law in such a way as to maximize national discretion, Lord
Mance also interpreted the Francovich
principles regarding state liability so as to suggest that in any event there
could have been no successful action for damages.

3 comments:

For me, one of the most intriguing bits of this is the last paragraph. What are the obligations on UK courts where a piece of UK law "within the scope of" (or whatever the right wording is cf Fransson) the EU CFR, and is found to breach it? If "disapplication" works, well and good. But then there has to be a positive law in place to apply. And if not, we fall back on the "effective remedies" bit of EU law, I suppose? Or on the Mangold/Kucukdeveci approach to fundamental rights as general principles of EU Law, requiring therefore procedural protections?